Retest injury-prone employee? Missouri

[deg512]

We have an employee who has been injured on the job 8 times in 7 years. Most are strains - back, shoulder, neck, wrists. The job is very physically demanding, so much that we require all new hires to pass an essential functions test at our clinic that involves lifting, pushing, pulling, etc. Are we allowed to require this employee to retake the essential functions test?

Honestly, we have serious doubts about his ability to continue doing this type of work safely. There are several other employees we are concerned about as well, so it wouldn't just be him. Or do we have to retest all employees at certain points of their career (every five years, for example)? Our union contract is silent on this issue, but we don't want to run into any legal trouble for doing this.

[ElleMD]

I'd say you are on safe ground to get a fit for duty exam or a functional capacity exam based on the number of injuries reported. I'd be on the phone with the WC carrier and legal counsel to discuss coordinating this. It is possible that one could be ordered as part of the claims process but whether that is a wise move in any given situation is a judgement call. It may be better to simply handle this independently and I have done it both ways.

There is no need to retest everyone, but if this job is very physical, it may be wise to have the employees who return from leave of a certain duration or file a WC claim that meets certain criteria undergo a fit for duty exam with a physician of your choosing. This is almost undoubtedly a negotiable issue so you will want to talk to your legal counsel and work with the union before implementing it. At the very least, it should not be a surprise to them.

[deg512]

Yes, grievances can end up in arbitration. Can you elaborate on this?